Page No.# 1/13 GAHC010197982019 2026:GAU-AS:5958 THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH) Case No. : RSA/29/2020 UTTAM SAHA S/O- LATE MADHUSUDAN SAHA, R/O- KALAHBHANGA, BARPETA ROAD, MOUZA- GOBARDHANA, DIST.- BARPETA, ASSAM. VERSUS SRI GAURANGA SAHA AND 50 ORS. S/O- JURAN SAHA 2:SRI SAMPAT SAHA S/O- SRI ABINASH SAHA 3:SRI BISWAJIT SAHA S/O- LATE ABINASH SAHA 4:SRI RANJAN SAHA S/O- SRI SUNIL CHANDRA SAHA 5:SRI BIDYUT SAHA S/O- LATE ANIL SAHA 6:SRI SURUT SAHA S/O- SUNIL SAHA 7:SRI PRAKASH SAHA S/O- SUNIL SAHA 8:SRI RAMESH SAHA S/O- SRI HARAN SAHA 9:SRI SUDARSHAN SAHA S/O- SUNIL SAHA Page No.# 2/13 10:SRI JATNESHWAR SAHA S/O- LATE JURAN SAHA 11:SRI SRI KALIBARI DURGABARI AND SARAT SMRITY SANGHA ALL ARE CLAIMING TO BE MEMBERS OF AND WORKING UNDER NAME AND STYLE OF UNREGISTERED ASSOCIATIONS CALLED SARBAJANIN SRI SRI KALIBARI DURGABARI AND SARAT SAMITY SANGHA ALL ARE RESIDENTS OF KALAHBHANGA BARPETA ROAD. 12:KHOSAL SHEIKH R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 13:ALIMUDDIN SHEIKH R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 14:DUIKHA SHEIKH R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 15:SRI PABITRA KUMAR SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 16:SRI SUMANTA KUMAR SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 17:ON THE DEATH OF SURESH CHANDRA SAHA HIS LEGAL HEIRS SRI BABU SAHA (SON) Page No.# 3/13 R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 18:BHOMBAL SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 19:SMT. MUKILI SAHA (WIFE) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 20:SRI HARI GOBINDA SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 21:SRI SUNIL KUMAR SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 22:ON THE DEATH OF RADHIKALAL SAHA HIS LEGAL HEIRS SRI PARIMAL SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 23:SRI AMAL SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. Page No.# 4/13 24:SRI BIMAL SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 25:SRI SHYAMAL SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 26:SRI NIRMAL SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 27:ON THE DEATH OF RANGLAL SAHA HIS LEGAL HEIR GOPAL CHANDRA SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 28:SRI GURANGA CHANDRA DAS R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 29:SRI NITYANANDA DAS R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 30:SRI SUSHIL MORE R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA Page No.# 5/13 DIST.- BARPETA ASSAM. 31:ON THE DEATH OF PRAFULLA KUMAR SAHA HIS LEGAL HEIRS SRI SUNIL SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 32:SRI ANIL SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 33:SRI NIKHIL SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 34:SRI ANUKUL SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 35:SRI GOBINDA CHANDRA SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 36:SMT. SARATHI BALA SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 37:ON THE DEATH OF JITENDRA MOHAN SAHA HIS LEGAL HEIRS SRI NARESH SAHA (SON) Page No.# 6/13 R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 38:ON THE DEATH OF RAKHAL CHANDRA SAHA HIS LEGAL HEIRS SRI RANJIT KUMAR SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 39:SRI SUJIT SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 40:SRI RATIS SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 41:SRI DURGESH CHANDRA SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 42:ON THE DEATH OF RAYMOHAN SAHA HIS LEGAL HEIRS SRI RATNESHWAR SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 43:SRI PRABIR KUMAR SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA Page No.# 7/13 DIST.- BARPETA ASSAM. 44:SRI HAREKRISHNA SAHA @ KISTA SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 45:SRI MANTRIALAL SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 46:ON THE DEATH OF NITAI CHANDRA SAHA HIS LEGAL HEIRS SRI SURYA SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 47:SRI JIBAN SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 48:SRI DILIP SAHA (SON) R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 49:SMT. PARBATI BALA SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 50:SRI ASUTOSH SAHA R/O- KALAHBHANGA Page No.# 8/13 BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM. 51:SRI HARIPRASAD SAHA R/O- KALAHBHANGA BARPETA ROAD MOUZA- GOBARDHANA DIST.- BARPETA ASSAM Advocate for the Petitioner : MR. R K BHUYAN, MR A ZAMAN,MR. M KASHYAP Advocate for the Respondent : DR. B AHMED, MR. S R BARBHUIYA,MR. N HAQUE,MR M HUSSAIN BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN ORDER 28.04.2026 Heard Mr. R.K. Bhuyan, learned Sr. Counsel assisted by Mr. A. Bhattacharjee, learned counsel for the appellant and also heard Mr. N. Haque, learned counsel for the respondents. 2. This appeal, under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 20.05.2019, passed by the learned Civil Judge, Barpeta, in Title Appeal No.39/2017. It is to be noted here that vide impugned judgment and decree dated 20.05.2019, the learned Civil Judge, Barpeta, has remanded the Title Suit No.17/2011, with a direction to frame an additional issue, regarding non-joinder of necessary parties, but subsequently dismissed the appeal and thereby reversed the judgment and decree dated 29.03.2017 passed by the learned Munsiff No.1, Barpeta, in Title Suit No.17/2011, whereby the learned Munsiff No.1, Barpeta, has dismissed the suit of the plaintiff/appellant herein. Page No.# 9/13 3. It is to be noted here that the appellant herein as plaintiff had instituted a suit, being Title Suit No.17/2011 before the Court of learned Munsiff No.1, Barpeta, for declaration of his right, title and interest and partition and for recovery of possession, over the suit land, against the defendant Nos.1—11 along with the proforma defendants. 4. The case of the appellant is that his father, Madhusudhan Saha had purchased the Schedule 'E' land to the plaint out of the Schedule 'D' land and he was gifted 17 lecha of land of Schedule 'E' land and thereafter, the respondents have dispossessed the appellant from the said land on 17.11.2010. The respondents herein, as defendants, had contested the suit before the learned Trial Court. The respondents/defendants are the members of Sri Sri Sarbajanin Kalibari-Durgabari and Sarat Samriti Sangha and they filed written statement cum counter-claim, stating that said Kalibari and Durgabari Mandir was constructed by the people of that locality, covering an area of 2 katha 17½ lecha of land, which has been described in Schedule 'Y' to the counter-claim and out of that land, the land measuring 17½ lecha, described in Schedule 'Y1', was given to the father of the appellant, who remain in possession as permissive occupier and when he refused to vacate the said land, they filed the counter-claim for declaration of right, title and interest of Sri Sri Kalibari-Durgabari and Sarat Samittee in respect of the land described in Schedule 'Y' and for recovery of possession of the Schedule 'Y1' land. 5. Thereafter, the learned Munsiff No.1, Barpeta, vide impugned judgment and decree dated 29.03.2017, after hearing both the parties, dismissed the suit filed by the appellant as plaintiff, instead it has partly decreed the counter-claim filed by the respondents/defendants. 6. Being aggrieved, the appellant had preferred an appeal, being Title Appeal No.39/2017, before the learned Civil Judge, Barpeta against the judgment and decree, dated 29.03.2017, passed by the learned Munsiff No.1, Barpeta. Thereafter, the Page No.# 10/13 learned First Appellate Court, after hearing both the parties, vide impugned judgment and decree dated 20.05.2019, remanded the Title Suit No.17/2011, to the learned Trial Court, with a direction to frame an additional issue on the point of non-joinder of necessary parties, and to allow the parties to lead evidence on that issue only. But, vide said judgment, specially in paragraph No.32, and in paragraph No.33, the learned First Appellate Court dismissed the appeal. 7. It is to be noted here that this appeal was admitted for hearing on the following substantial questions of law:- (i) Whether in the absence of any challenge to the judgment and decree of the learned Trial Court by the respondent under Order XLI Rule 22 CPC, it was permissible for the learned First Appellate Court to take up the issue of non- joinder of necessary parties, being a issue which is adverse to the interest of the appellant? (ii) Whether while dismissing the appeal, it was open to the learned First Appellate Court for remanding the suit for re-trial after framing issues of non-joinder of necessary parties without first deciding if the society under the name of Sri Sri Kalibari Durgabari Mandir and Sarat Smrity Sangha is a lawfully constituted religious trust or a society and whether non-joinder of unregistered society or a religious trust could have been fatal for the suit? (iii) Whether while dismissing the appeal and affirming the decree of dismissal of the suit, it was lawful for the learned Appellate Court to remand the suit for retrial on the point of non-joinder of necessary parties as such a decision would not impact the decision on the other issues on which the suit was dismissed? 8. Mr. Bhuyan, learned Sr. counsel for the appellant, referring to paragraph No.29, of the impugned judgment, submits that the learned First Appellate Court had held that Durgabari-Kalibari and Sarat Smriti Sangha are the necessary parties of the suit of the plaintiff, which has not been assailed by the defendants at the trial stage, but the Page No.# 11/13 plaintiff although amended the plaint, but failed to make Presidents/Secretaries of Durgabari-Kalibari and Sarat Smriti Sangha as a party in the suit and without their presence, no effective order can be passed, which the learned Court below had overlooked and as such, the said judgment of the learned Court below deserves interference and accordingly, it is interfered by holding that the suit of the plaintiff is not maintainable in the present form and on this count the judgment and decree in Title Suit No.17/2011 required to be reversed and accordingly, reversed the same and thereafter, in paragraph No.32 the learned Appellate Court had held that the appeal is devoid of merit, which required to be dismissed and in the subsequent paragraph No.33, it has held that in the conclusion the appeal is dismissed on contest without cost and remanded the T.S. No.17/2011, along with copy of that judgment of the learned Court below with a direction to re-admit the suit under its original number in the register of civil suits and proceed to determine the suit framing an additional issue on non-joinder of necessary parties with a liberty to both the parties to lead evidence on that issue only. 9. Mr. Bhuyan further submits that the finding so recorded by the learned First Appellate Court are contradictory and on one hand, it has remanded the matter to the learned Trial Court to try the suit again by framing an additional issue on the point of non-joinder of necessary parties and on the other hand, it has dismissed the appeal and on such count, the substantial question No.(ii) is involved herein and therefore, Mr. Bhuyan has contended to interfere with the impugned judgment and decree passed by the learned First Appellate Court and thereafter to remand the matter on that ground to the learned First Appellate Court to pass appropriate judgment and decree after affording an opportunity of being heard to both the parties. 10. Per contra, Mr. Haque, learned counsel for the respondents, fairly submits that the learned First Appellate Court has passed contradictory judgment. On the one hand, it has dismissed the appeal and on the other hand, it has remanded the title suit to the learned Trial Court and both these directions cannot co-exist and as such, he Page No.# 12/13 has no objection in the event of interfering with the impugned judgment and decree and in remanding the matter to the learned First Appellate Court to decide the matter afresh. 11. Having heard the submission of learned counsel for both the parties, this Court has carefully gone through the memo of appeal and the grounds mentioned therein and the substantial questions of law and also the impugned judgment and decree dated 20.05.2019, and this Court finds sufficient force in the submission of learned counsel for both the parties. 12. It appears that in paragraph No.32, the learned First Appellate Court had held that the appeal is devoid of merit and required to be dismissed and in paragraph No.33, it had held that the appeal is dismissed on contest without cost and remanded the case to the learned Trial Court to re-admit the Title Suit No.17/2011, under its original number and proceed to determine the suit by framing an additional issue on the point of non-joinder of necessary parties with a liberty to both the parties to lead evidence on that issue only. 13. Apparently, the finding so recorded by the learned First Appellate Court is contradictory and cannot co-exist. While remanding the matter to the learned Trial Court with a direction to frame additional issue on the point of non-joinder of necessary parties, it could not have dismissed the appeal on contest. 14. Accordingly, the impugned judgment and decree of the learned First Appellate Court, so far it relates to dismissal of the appeal, stands set aside and quashed. The matter stands remanded to the learned First Appellate Court with a direction to hear both the parties afresh and thereafter, pronounce a fresh judgment upon the same. 14.1. Both the parties are directed to appear before the learned Court below on 15.05.2026. 15. Registry shall return the record of the learned First Appellate Court as well as Page No.# 13/13 the learned Trial Court along with copy of this order to the Court of learned Civil Judge, Barpeta, forthwith by special messenger. Comparing Assistant Sd/- Robin Phukan JUDGE